Direct Sales and MLM

MLM Attorney, Kevin Thompson, on Bloomberg TV

By
Kevin Thompson

I had the privilege of being on Bloomberg for a small segment talking about Bill Ackman's latest presentation. The 7-minute segment can be viewed above. Ackman's presentation today, if you can spare 3+ hours, can be found here.Before summarizing his argument, it needs to be said that he heavily promoted this presentation yesterday. He was like Muhammad Ali talking about the Thrilla in Manila, saying it was "the most important presentation of his life." He further said that this would be the "death blow" to Herbalife. He successfully spooked the market, causing it to sink 11%. Instead of "conclusively proving fraud," which was his intent, he ignited confidence in the market due to the lack of substance. After the presentation, the stock UP 25% (same day). I'm not making this up. Up 25% the day of the death blow. Only on Wall Street.I'll summarize his thesis:

  • Herbalife's usage of "Nutrition Clubs" operates like a bait and switch for consumers.
  • The prospects are lured into the clubs on the auspices of hanging out with friends and sampling products.
  • These prospects are then pressured to "get on the treadmill" and join as distributors and recruit more people to visit the clubs.
  • The Club concept is designed to recruit, not to sell.
  • Herbalife's stance that the clubs foster community efforts for weight loss is smoke and mirrors.
  • He goes further and argues that the positioning of some of the clubs as "success universities" is misleading because they're not accredited as real universities.
  • He further argues that the Clubs violate various labor laws since the members are expected to help out in keeping the club operational i.e. free labor.
  • He argues that Michael Johnson learned of these strategies of penetrating the hispanic market while at Disney. In my opinion, he gave Michael Johnson way more credit than he deserved in this regard. The Nutrition Club concept was likely an invention in the field.

We discuss the presentation during the interview. Herbalife has issued its own response, including the findings from an economist about its model. Based on his data, he concluded that the vast majority of revenue is attributable to legitimate product consumption i.e. people buying for legitimate value. The data is significant, as it essentially puts the pyramid scheme argument to bed. If true, the majority of commissions are driven via legitimate economic activity by "ultimate users." This is why, in my opinion, Ackman paid very little attention to the law today. I think he knows the law is not in his favor on a macro level with Herbalife. Instead, he was arguing the facts on a micro level, painting a picture that there's a massive bait-and-switch occurring with the Nutrition Clubs. In his mind, if he can kill the Nutrition Clubs, he can kill Herbalife.

Commentary from me

Herbalife needs to avoid gloating. They sort of spiked the football today with their remarks. Yes, Ackman's presentation went off like a snap bomp instead of the full scale firework show we were promised. But, with that being said, he's certainly not someone to poke. He's obviously emotionally charged on the issue. He cried on a few occasions during the presentation. In his mind, he sees himself as a "Superman" that needs to rescue these poor, hispanic citizens. While 93% of Herbalife Nutrition Club operators are happy with their experience (based on a recent survey), Ackman would argue that they're under a trance that only he can break. Referencing the history of his great-grandfather that came to America from Russia, Ackman sees Herbalife as preying on people like his great-granddad, causing significant damage for future generations.Bottom line: he's amped up. And his puts expire in January of 2015, which means he needs to land a punch soon to get the stock to soften before he eats the loss. I think he's done his worst to Herbalife. It's now in the hands of regulators. Speaking of regulators, he did not provide them with any new ammunition today that they did not already possess yesterday. I stand firm with my initial opinion, made in January of 2013. Admittedly, I could be wrong. But I do not think the FTC will file an action against Herbalife. Instead, I think there's going to be some sort of negotiated settlement that will involve some sort of penalty for past transgressions. They're the Federal government...they're going to find something. Give me Ackman's investigatory budget of $50,000,000 and I'll find dirt on whatever you want. The return on his $50M investment was anti-climatic and the market made him pay.What do you think? What's next for Herbalife? What's next in Bill Ackman's playbook?

More Insight

February 26, 2024
By
Clay Brewer
Thoughts A Brewin' Newsletter 7: The California Risk
Learn more
Learn more
February 8, 2024
By
Clay Brewer
Thoughts A Brewin' Newsletter 6: Culture is Dead
Learn more
Learn more
January 29, 2024
By
Brooks Brasfield
Breaking Bad? Navigating the Corporate Transparency Act for Small Business Owners and Commercial Real Estate Investors
Learn more
Learn more